STATE OF DISTRICT COURT DIVISION JUVENILE BRANCH IN THE MATTER OF, A CHILD UNDER THE AGE OF EIGHTEEN CASE NO.: MOTION TO DECLARE [TEEN SEX STATUTE] UNCONSTITUTIONAL AS APPLIED AND TO DISMISS THE CHARGES AGAINST THE CHILD Comes the child,, by and through counsel, pursuant to the 2 nd, 5 th, 6 th, 8 th, and 14 th Amendments to the United States Constitution, Sections 1, 2, 3, and 59 of the Kentucky Constitution, the right to a fair trial, the right to due process, the right to equal protection, as well as the Kentucky Unified Juvenile Code and all other applicable case law, statutory and constitutional provisions, and moves this court to declare KRS 510.140 unconstitutional as applied to (CLIENT). In support of this Motion the child states the following: 1) On (Date), (CLIENT) and (COMPLAINING WITNESS) had consensual sex. [Change/add to this section of the facts to fit the specific details of your particular case.] 2) On (date of incident), (CLIENT) was years old. 3) On (date of incident), (COMPLAINING WITNESS) was years old. 4) has been charged with a violation of [TEEN SEX STATUTE.] The charges stem from the consensual that took place on (DATE/DATES OF INCIDENT) and are based solely on the complaining witness s inability to consent due to her age. 5) The statute is unconstitutional as applied to (CLIENT) because it violates (CLIENT) s rights to Due Process and Equal Protection under both the US Constitution and the State Constitution.
ARGUMENT I. [TEEN SEX STATUTE] is Unconstitutional as Applied (CLIENT) is challenging [TEEN SEX STATUTE] as being unconstitutional as applied to him. The U.S. Supreme Court has recognized the validity of such as-applied challenges. A statute may be challenged as unconstitutional on the basis that it is invalid on its face or as applied to a particular set of facts. U.S. v. Eichman, 496 U.S. 310, 312 (1990). The as-applied in the current case means that (CLIENT) contends that the application of the statute in the particular context in which he has acted [is] unconstitutional. Ada v. Guam Soc. of Obstetricians and Gynecologists, 506 U.S. 2011, 2011 (1992). (CLIENT) does not contend that [TEEN SEX STATUTE] is facially unconstitutional or unconstitutional as applied to adults; rather, (CLIENT) contends that the statute is unconstitutional when applied to minors who, like himself, are within the class of persons protected by the statute. The statute is unconstitutional as-applied to (CLIENT) for two reasons. First, the statute as applied to minors of (CLIENT) s age violates [his/her] Constitutional right to Due Process. Second, the statute has been applied to (CLIENT) in contravention of his Constitutional right to Equal Protection. A) Due Process 1) The Application of [TEEN SEX STATUTE] to (CLIENT) Violates His Fundamental Right to Privacy, and Thereby Violates His Constitutional Right to Substantive Due Process. U.S. Const. Amend. XIV, 1 states in part that all individuals are to be granted due process of law. This basic principle is also contained in [INSERT APPLICABLE SECTION OF STATE CONSTITUTION]. Juveniles such as (CLIENT) are to be 2
afforded the same due process protections as adults. Kent v. United States (1966), 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84,citing Green v. United States, 113 U.S.App.D.C. 348, 308 F.2d 303 (1962). Due process can be divided into two categories: 1) substantive due process, which addresses rights so fundamental that the government must have an exceedingly important reason to regulate them, if at all, such as the right to free speech or to vote; and 2) procedural due process, which requires government to follow known and established procedures, and not to act arbitrarily or unfairly in regulating life, liberty or property. See, Miller v. Johnson Controls, Inc., 296 S.W.3d 392, 397 (Ky. 2009.) [IF POSSIBLE, FIND A LOCAL CASE WITH SIMILAR LANGUAGE DESCRIBING DUE PROCESS.] In the current case, [TEEN SEX STATUTE] as applied to (CLIENT) violated substantive due process. The current case involves two teenagers, both under age sixteen, having sex with each other. The freedom to engage in sexual acts with a peer is clearly a liberty interest that is to be afforded Constitutional protections. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (stating the position that the liberty interest involved in the sexual act made its punishment constitutionally impermissible. ) When a statute seeks to regulate behavior related to the right to privacy this triggers a substantive due process analysis. Griswold v. Connecticut, 387 U.S. 479, 485; 85 S.Ct. 1678, 1682 (1965.) Accordingly, in order for the State to be able to continue to apply [TEEN SEX STATUTE] in the manner it has against (CLIENT), the State must establish that doing so passes Constitutional muster. a.) Strict Scrutiny Applies The application of [TEEN SEX STATUTE] to (CLIENT) affects a fundamental right (the right to privacy), and accordingly must be afforded strict scrutiny 3
review. See, Zablocki v. Redhail, 434 U.S. 374, 381-388; 98 S.Ct. 673, 678-682 (1978.) The U.S. Supreme court noted in Zablocki that [w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. Id at 388,682, internal citations omitted. In the current case, then, the Commonwealth must establish that [TEEN SEX STATUTE] as applied to (CLIENT) is tailored in such a way as to serve a sufficiently important state interest. Zablocki at 388, 682. While the State may indeed have a legitimate interest in regulating some teenage sexual behavior, the statute as applied to [ (CLIENT) is not closely tailored to meet such an interest. This Commonwealth has set [STATE AGE OF MAJORITY] as the threshold age at which children are deemed to have sufficiently matured socially, psychologically, emotionally, and physically to be able to consent to sex. See, [STATE LEGISLATIVE HISTORY/STATUTORY COMMENTARY] The application of [TEEN SEX STATUTE] to children such as (CLIENT) is not suitably tailored to meet any sufficiently important interest of this State. The statute subjects such children to [LIST PENALTIES AND COLLATERAL CONSEQUENCES, SUCH AS SEX OFFENDER REGISTRY]. To the extent that this State may have an interest in regulating sex amongst teen peers under the age of majority, there exist other laws that are more suitably tailored to address such concerns, e.g., the [non-criminal juvenile offense provisions; often called STATUS OFFENDER provisions] of the Juvenile Code. For instance, in the current case, (CLIENT) and his girlfriend (COMPLAINING WITNESS) could have both been charged with [NAME OF ANY APPLICABLE STATUTE. FOR EXAMPLE: BEYOND CONTROL OF 4
PARENT, OR EVEN TRUANCY (IF FOR INSTANCE, THEY SKIPPED SCHOOL TO GO HAVE SEX)], and then following an adjudication could have been ordered at disposition to take classes on sexual boundaries, appropriate peer interactions, and so forth. b) [TEEN SEX STATUTE] As Applied to (CLIENT) Also Violated His Due Process Rights as Being Void for Vagueness. In addition to the above substantive due process concerns, [TEEN SEX STATUTE] as applied to (CLIENT) also violated his due process rights because the statute is unconstitutionally vague. Under the void-for vagueness doctrine, [t]o satisfy due process, a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement. Skilling v. U.S., 561 U.S. 358, 402-403, 130 S.Ct. 2896,177 L.Ed.2d 619 (2010), citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). In the current case, [TEEN SEX STATUTE] as applied to (CLIENT) fails the second prong of this test. [TEEN SEX STATUTE] as applied to (CLIENT) is impermissibly vague under the Fourteenth Amendment because the use of the statue as applied authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480 (U.S.,2000), citing Chicago v. Morales, 527 U.S. 41, 56-57, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). See also State Bd. for Elementary & Secondary Educ. v. Howard, 834 S.W.2d 657, 662 (Ky. 1992.) When (CLIENT) and (COMPLAINING WITNESS) had sex, they were both under sixteen (16), and therefore unable to consent to sexual behavior under the law. Yet the Commonwealth elected to charge (CLIENT) as the public offender, and designate (COMPLAINING WITNESS) as the victim. This raises Equal 5
Protection concerns that will be further discussed infra, but for the purposes of this section, it suffices to say that such an action also constituted an arbitrary and discriminatory enforcement of the law. Such a decision cannot be defended as merely an exercise of prosecutorial discretion when the crime charged consists of an activity that the two primary actors are engaging in with each other. In such instances, charging one actor and not the other constitutes arbitrary and discriminatory enforcement. See, D.B. v. Commonwealth, 129 Ohio St.3d 104,110; 950 N.E.2d 528, 534 (Ohio, 2011), further discussed infra. It is important to note that in the current case, both children were similarly-aged peers, both were members of a protected class, and were engaging in consensual sex. The acts of (CLIENT) and (COMPLAINING WITNESS) are inextricably and intimately intertwined. [TEEN SEX STATUTE] contains no guidelines or instructions on how it is to be enforced when both parties are unable to consent due to their age. It is a long-established principle, not only in [STATE], but in the entire nation, that laws must be clear and establish minimal guidelines on enforcement. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, (U.S. Mass. 1974.) Accordingly, [TEEN SEX STATUTE] is unconstitutionally void for vagueness as applied to (CLIENT). 2.) [TEEN SEX STATUTE] as Applied to (CLIENT) Violates His Right to Equal Protection The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution mandates that similarly circumstanced individuals be treated alike. U.S. Const. Amend. XIV, 1; see also City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985), citing Plyler v. Doe, 457 U.S. 202, 216, 102 6
S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).) The Commonwealth is obligated under this clause to not deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. Amend. XIV, 1. Equal Protection to all citizens of this State is also guaranteed under [INSERT APPROPRIATE SECTION OF STATE CONSTITUTION.] [TEEN SEX STATUTE] as applied to (CLIENT) violated his constitutional right to Equal Protection. B) Both children are members of the protected class (CLIENT) and his girlfriend (COMPLAINING WITNESS) are both incapable of giving consent to sexual activity due to their age. [CITE TO STATUTE THAT DEFINES AGE OF CONSENT] There is no dispute that (CLIENT) and (COMPLAINING WITNESS) had sex, and it is clear that the sex was consensual. Yet (CLIENT) is painted as villain, (COMPLAINING WITNESS) as victim. It is important to note that both (CLIENT) s and (COMPLAINING WITNESS) s ages place them within the victim age range. As both (CLIENT) and (COMPLAINING WITNESS) are defined as victims under the statute, the State cannot elect to charge one of them with the crime and not the other without running afoul of Equal Protection. (CLIENT) directs this Court s attention to Ohio, whose Supreme Court recently held that it was unconstitutional to criminally charge a child who was himself legally unable to consent when he engaged in sexual conduct with a same-aged peer. See, D.B. v. Commonwealth, 129 Ohio St.3d 104,110; 950 N.E.2d 528, 534 (Ohio, 2011.) The Ohio Supreme Court noted that in such instances, each child is both an offender and a victim, and the distinction between those two terms breaks down. Id at 108. While the D.B. Court found the statute in that case to be unconstitutional on several grounds, one 7
of the specific findings that the D.B. Court made was that it was a violation of Equal Protection to charge only one of the children involved. Id at 110. 1.) The Legislature Did Not Intend with [TEEN SEX STATUTE] to Criminalize Sexual Behavior Between Similarly-Aged Peers Both Under the Age of Consent. It has long been settled in the law that All laws are to be given a sensible construction; and a literal application of a statute, which would lead to absurd consequences, should be avoided whenever a reasonable application can be given to it, consistent with the legislative purpose. United States v. Katz, 271 UI.S. 354, 357; 46. S. Ct. 513, 514 (1926.)[FIND MORE RECENT LOCAL CASE IF POSSIBLE THAT HAS SIMILAR LANGUAGE. THIS CASE IS STILL GOOD LAW THOUGH, AND APPLICABLE IN ALL JURISDICTIONS] Yet that is exactly what has happened in the current case. Under state law, both (CLIENT) and (COMPLAINING WITNESS) are incapable of consent to sexual activity. [CITE TO STATUTE] Accordingly, neither should be able to be held criminally liable in an instance of engaging in consensual sex with a fellow minor. (CLIENT) and (COMPLAINING WITNESS) are both in the class of individuals that the Commonwealth seeks to protect with [TEEN SEX STATUTE] (i.e. minor children under the age of consent) and the law asserts that children of (CLIENT) s age are unable to consent to sex. It is improper and legally unjustifiable to then permit the State to perform a complete 180-degree turn and assert that this same child is somehow able to appreciate the full gravity of, and be criminally liable for, the very behavior that the Legislature has said that he is too young to consent to. The State s prosecution of (CLIENT) under the very same laws drafted to protect him has led to a result that the Legislature clearly never intended. In the current case, (CLIENT) would urge that this Court look to the Supreme Court of Pennsylvania for guidance on this issue. In the case In the Interest of B.A.M., 8
806 A.2d 893 (PA Super. Ct. 2002), the Pennsylvania Superior Court specifically addressed the circumstance of sexual behavior between two children who were both incapable of consent under Pennsylvania s laws, and held that finding such a child guilty of rape was an improper application of the law, and was not within the intent of the Legislature when the law was enacted. Id at 898. The Court in B.A.M. noted that when a child is legally incapable of consent, he or she must be presumed, absent clear evidence to the contrary, to be equally incapable, in any sense implicating criminal liability, of initiating such conduct. Id. In order to promote justice and effect the objects of the law, this Court should construe [TEEN SEX STATUTE] as not applying to sex between a boy who had just turned (CLIENT s AGE) and his (COMPLAINING WITNESS S AGE) year-old girlfriend, as both children are defined as being unable to consent, under the law. CONCLUSION This Court should declare [TEEN SEX STATUTE] unconstitutional as applied to (CLIENT), for all the reasons stated above, and DISMISS WITH PREJUDICE the charge against him. Respectfully submitted, ATTORNEY FOR THE CHILD [STATE AGENCY] ADDRESS PHONE FAX 9
NOTICE Please take notice that the foregoing motion will be heard before the Hon., Judge, District Court, on the day of 2017, at the hour of or as soon thereafter as counsel may be heard. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing motion has been served, via U.S. First-Class Mail, postage pre-paid, upon, Court Clerk for County, (ADDRESS) to be filed upon receipt; and on the office of the Hon., County Attorney, (ADDRESS) and upon the Office of the State Attorney General, (ADDRESS), this day of, 2017. Attorney for the Child 10